IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 2786 of 2002()
1. N.S. VIJAYA RAGHAVAN, S/O. SREEDHARAN
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE TALUK LAND BOARD,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :21/12/2009
O R D E R
HARUN-UL-RASHID, J.
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C.R.P.No. 2786 of 2002
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Dated this the 21st day of December, 2009.
O R D E R
The revision petitioner is one of the legal heirs of deceased
declarant. Revision petition is filed challenging the order of the
Taluk Land Board, Neyyattinkara dated 31.07.2002.
2. The revision petitioner is claiming right, title and interest
over 3.45 acres of land in Survey No.2952 of Keezhvallam village.
The property claimed by the revision petitioner originally belongs
to his father. He obtained title to the property by virtue of Gift
deed executed by the father in his name on 14.12.1972.
3. The declarant passed away on 28.10.1973. The
declarant’s wife, Smt.Devaki Amma filed objection in response to
the notice issued by the Taluk Land Board. After hearing, the
Taluk Land Board by its order dated 30.12.1975 declared that the
deceased declarant hold land in excess of the ceiling area, that
8.33.787 acres of land is held by him as excess land and
therefore issued order directing his legal heirs to surrender the
said extent.
C.R.P.No.2786/02 2
4. Taluk Land Board passed the aforesaid order after
conducting inquiry as contemplated under sec.85(7) of the Kerala
Land Reforms Act. The Taluk land Board initiated proceedings
against the declarant’s wife and three minor children. Admittedly
the revision petitioner is not included as a member of the
statutory family on the basis of the enquiry report stating that
there are only three minors in the family. Finding that the
property gifted in favour of the petitioner was also included as
land owned and held by the declarant, the revision petitioner
filed a petition under section 85(8) Land Reforms Act claiming
right, title and interest of the said extent. 85(8) petition was
filed on 4.1.1996.
5. Original order dated 30.12.1975 was challenged by Mrs.
Devakiamma before this court. This court modified the order
passed by the Taluk Land Board and held that the extent of land
liable to be surrendered by the declarant and statutory family is
reduced to 6.8.787 acres of land.
6. After the Amendment Act 27 of 1979 came into force, the
Taluk Land Board reopened the case and issued notice to the
C.R.P.No.2786/02 3
parties to file a fresh statement. Contesting parties filed
objections. The Taluk Land Board after conducting detailed
enquiry again passed order on 5.4.1980 holding that the
declarant was in possession of only 12.99.696 acres as on
1.1.1970 and that the declarant has no excess land to surrender
as on 1.1.1970.
7. The Taluk Land Board, after a gap of 10 years, again
issued notices on 19.01.1990 to Devaki Amma and others
reopening the case under section 85(9 A) of the Amendment Act.
the Taluk Land Board after considering the objection again hold
that there is no irregularity or reason to reopen the case finally
decided on 5.4.1980. Taluk Land board thus again dropped the
proceedings initiated under section 85(9A) of the Act as per order
dated 28.5.1992. In the revision petition filed by the State of
Kerala, numbered as CRP 755/1993 this court partly set aside the
order dated 28.5.1992 and directed the Taluk Land Board to
reconsider the case on certain points noted in the judgment.
8. It is contended by the revision petitioner that he was a
major as on 1.1.1970 and also was having the status of a married
C.R.P.No.2786/02 4
person as on 1.1.1970. It is further submitted that he got
married on 1969 and that at that time he was aged 19 years. The
question to be examined by this court in the light of the
contention raised by the revision petition is as to whether he is
entitled to the benefit conferred by section 84 (1A) of the Land
Reforms Act. Sec.84(1 A) confers benefit on the major children of
the declarant and married minor child of the declarant. The
section confers benefit in the case of gift deed executed by the
declarant in favour of the aforesaid categories of children
between 1.1.1970 and 5.11.1974. If the petitioner is able to show
that he is a major as on 1.1.1970, by virtue of the gift deed under
which he claims title, he is entitled to contend that the extent
covered by the gift deed shall be excluded from the declarant.
This court while in the course of hearing of this matter, passed an
interim order dated 1.1.2009 directing the District Collector to
hold an enquiry to verify the age of the revision petitioner. This
court directed the District Collector, Thiruvananthapuram to
enquire the matter through Tahsildar and directed to report
whether the petitioner had attended any school and if so, report
the date of birth in the school records. The District Collector, in
the report dated 26.2.2009 reported that the revision petitioner
C.R.P.No.2786/02 5
had not obtained any primary school education and therefore it is
not possible to verify the correct date of birth of the appellant .
9. Sec. 85(7) mandates enquiry before issuing notice,
calling upon the declarant to file objection in the proceedings for
determination of the excess land. sec.87 contemplates an
enquiry. In the enquiry conducted by the Land Board it is
revealed that statutory family consists of five members, namely,
declarant, his wife and three minor children. The enquiry further
revealed that revision petitioner was a major as on 1.1.1970. On
the basis of the enquiry, notice was issued to Devaki Amma, her
objection was considered and the Taluk Land Board by its order
on 13.12.1975 directed the statutory family to surrender
8.33.787 acres of land which was subsequently reduced to
6.68.787 acres of land in the civil revision petition. After the
Amendment Act 27 of 1997 again the Taluk has reopened the
case and the matter was considered afresh. The revision
petitioner and others were heard. A detailed enquiry was
conducted and the the Taluk Land Board held that 3 acres and 45
cents claimed by the revision petitioner is liable to be excluded
from the account of the assessee u/s. 84 (1 A) of the Act. The
C.R.P.No.2786/02 6
above said circumstances will go to show that there was occasion
to consider the claim of the petitioner twice and the Taluk Land
Board passed orders holding that claimant’s property is liable to
be excluded from the account of the assessee.
10. After a lapse of 10 years from the date of the second
order the Taluk Land Board reopened the case u/s. 85(9 A).
Notice was issued to the petitioner and others. By the order
dated 28.5.1992 the Taluk Land Board dropped the proceedings
initiated under section 85(9A) of the Act. In the civil revision
petition, CRP.755/93 this court remanded the case to consider
whether the revision petitioner is entitled to hold an extent of
3.45 acres of land; whether he was a minor as on 1.1.1970;
whether he is a married person on 1.1.1970 etc. After remand
the petitioner produced marriage certificate, copy of horoscope
etc. I have already discussed the enquiry made by the Taluk Land
Board regarding the status of the revision petition on three
occasions. After due enquiry the Taluk Land Board found that he
was a major as on 1.1.1970 and therefore not included as a
member of the statutory family. Simply because his age was
shown as 19 years in the gift deed executed in 1972, It is not
C.R.P.No.2786/02 7
possible for this court to conclude that he was a minor as on
1.1.1970. The age shown in conveyance deed may or may not
reflect the correct age and that was not a sole reason for
reopening the case which was settled after thorough enquiry on
several occasions. The petitioner has produced the horoscope
since he is not a person who has attended the school. The only
document which is available with him is horoscope. Horoscope
shows that he was born on 17.12.1950. The said document
shows that he is a major on 1.1.1970. There are no materials to
find that he is a minor on 1.1.1970. Moreover, he has produced
the marriage certificate which would go to show that he is a
married person as on 1.1.1970. Even if it is assumed that he is a
minor as on 1.1.1970, if he is a married minor as on 1.1.1970, he
is entitled to the benefit as per Sec.84 (1 A) of the said Act. In
these circumstances, the property claimed by the revision
petitioner by virtue of the gift deed is excluded from the account
of the declarant. Consequently the extent liable to be
surrendered shall be the extent less 3.45 acres covered by gift
deed No.3434/72.
C.R.P.No.2786/02 8
11. This court in the final order in CRP 755/93 directed the
Taluk Land Board to consider the question regarding the
easement of land necessary for the convenient enjoyment of the
house. The said question was considered by the Taluk land
Board. The Taluk Land Board held that the legal heirs of the
declarant failed to produce records to establish that one acre of
land is required for the convenient enjoyment of the dwelling
house. Taluk Land Board by the order dated 28.5.1992 exempted
the additional one acre of land for the convenient enjoyment of
the house and appurtenant tenements. After remand the Taluk
Land Board by the impugned order held that for want of evidence
the exemption of one acre allowed for the convenient enjoyment
of house is liable to be cancelled. The counsel for the revision
petitioner submits that 40 cents of land in a remote village area
exempted for the house is not sufficient for the convenient
enjoyment of the residential building and appurtenant
tenements. Learned counsel for the revision petitioner also
submits that the said 40 cents includes the private road portion
leading to the residential property and that there are other
constructions in the compound. Therefore it is submitted that a
reasonable additional area may be exempted under this head.
C.R.P.No.2786/02 9
The Taluk Land Board before remand, granted one acre of land in
addition of 40 cents for the convenient enjoyment of the house.
Taking a lenient view a further exemption of 35 cents is allowable
under this head. In view of the modifications made, Taluk Land
Board shall exclude 3.45 acres of land and an extent of 35 cents
additionally, granted for the convenient enjoyment of the house.
A revised order may be passed directing surrender of excess land
less the extent stated above. The Civil revision petition is partly
allowed. There will be no order as to costs.
(HARUN-UL-RASHID, JUDGE)
sou.
